Far beyond British Columbia, where a First Nation asserted its rights to ancestral land, proponents of resource development projects will now confront a changed landscape created by the Supreme Court’s decision in the historic case.
Governments and companies eyeing mining and pipeline projects in Ontario or fracking endeavours in New Brunswick, for example, could encounter emboldened aboriginal groups asserting land claims and a right to significant consultation or, if ownership is established, a qualified requirement for consent.
On Thursday, the country’s top court said aboriginals still own their ancestral lands if they didn’t surrender them through treaties, and that governments and companies must try to obtain consent from title holders for use of the land. Importantly, the ruling also said that where ownership is asserted but hasn’t yet been established, the government needs to consult with the aboriginal group and accommodate it where appropriate.
“Fundamentally, what the court is saying is that governments and companies have to take aboriginal rights seriously,” said former Liberal MP Bob Rae, the chief negotiator for the Matawa First Nations, which is in talks with Ontario about opening their traditional land to the massive Ring of Fire mineral development.
Mr. Rae said the Treaty 9 nations he represents view the treaty as an agreement to share their land with the Crown, not surrender it. “We fully expect the governments of Ontario and Canada to respect the spirit and broader meaning of the treaty,” said Mr. Rae, reached in the remote Matawa community of Neskantaga.
First Nations leaders lauded the ruling as a victory, with Ontario Regional Chief Stan Beardy predicting the decision will have “implications” for major projects in the province, including the Ring of Fire and two pipelines.
In a statement, he also said fellow Ontario chiefs are “optimistic that this will have a positive impact on the Keewatin case,” a reference to a Supreme Court case challenging Ontario’s right to permit industrial logging on Grassy Narrows First Nation traditional land.
Much of Canada is covered is by treaties, but there are parts of the country where aboriginal land rights have not yet been subject to historic or modern agreements. The latter is true of most of B.C. – home to the proposed Northern Gateway pipeline – but it’s also true of the Atlantic provinces, where Peace and Friendship treaties didn’t surrender aboriginal rights to land or resources.
There are about 100 active self-government and comprehensive land claim negotiations ongoing across Canada, according to Aboriginal Affairs and Northern Development Canada. Among those claims is one brought by the Algonquins of Ontario, which Queen’s University community relations expert Anne Johnson said could mean a tougher road ahead for resource projects across the vast region in question.
“I think particular projects may be rejected, but I think it also opens the door to projects that are more collaboratively developed and for which there’s much greater certainty,” said Ms. Johnson, a PhD candidate in mining.
Dwight Newman, the Canada research chair in Indigenous rights in constitutional and international law at the University of Saskatchewan, said the Supreme Court decision could also “shift the legal landscape” in Atlantic provinces such as New Brunswick, where potential shale gas sites have already sparked protests.
“The result [of the decision] is probably to push more for consent by the aboriginal community or communities involved,” he said, noting the government can override title by establishing that the proposed incursion on the land is justified under the Constitution.
KATHRYN BLAZE CARLSON
OTTAWA — The Globe and Mail
Published Thursday, Jun. 26 2014, 9:49 PM EDT
Last updated Friday, Jun. 27 2014, 6:43 AM EDT